SALChttps://southernafricalitigationcentre.org
Tue, 26 Sep 2017 13:28:39 +0000en-ZAhourly1https://wordpress.org/?v=4.8.2Swaziland: Challenge to the Common Law Marital Power and Marriage Acthttps://southernafricalitigationcentre.org/2017/08/29/swaziland-challenge-to-the-common-law-marital-power-and-marriage-act/
https://southernafricalitigationcentre.org/2017/08/29/swaziland-challenge-to-the-common-law-marital-power-and-marriage-act/#respondTue, 29 Aug 2017 07:48:03 +0000http://salc.codefaktory.com/?p=1500SALC is working with Women and Law in Southern Africa’s Swaziland chapter (WLSA-Swaziland) on a case challenging the common law marital power and the Marriage Act of 1964. Under the common law marital power, a married woman cannot conclude contracts without her husband’s permission, she cannot represent herself in civil suits, and she cannot administer property. This restriction on the right to conclude contracts includes restrictions on the ability to access bank loans, mortgages, and financial credit generally. Common law marital power therefore relegates married women to the legal status of minors under the guardianship of their husbands.

The applicants argue that by denying married women the right to contract, administer property, and sue or be sued in court, common law marital power violates the right of married women under the Constitution and international law to equality before the law with men, equal treatment with men, and the right to dignity. The applicants further challenge sections 24 and 25 of the Swazi Marriage Act for discriminating against married women on the basis of race because they impose on African spouses the customary consequences of marriage while granting to non-African spouses the common law consequences of marriage. This violates the right of married women to be free from racial discrimination under the Constitution and international human rights treaties. Thus, even if marital power was removed from the common law, the Marriage Act would still subject African women to customary marital power, perpetuating the violation of their rights.

The case was brought by WLSA-Swaziland and Makhosazane Eunice Sacolo, a Swazi woman married under the Marriage Act. Makhosazane was deserted by her husband who stopped discharging his obligations as a parent and husband. Because of the marital power, she could not sell any of the livestock the couple owns, including those that she purchased with her own money because they are registered in her husband’s name. She cannot even attain veterinary care or purchase medication for her livestock as she requires proof of ownership over the livestock.

The applicants are asking the Court to remove marital power from the common law and so grant equal rights to sue or be sued, contract, and administer property to all Swazi women married under the civil system. They also ask the Court to strike those portions of the Marriage Act that distinguish on the basis of race, specifically parts of Section 24 and the entirety of Section 25.

]]>https://southernafricalitigationcentre.org/2017/08/29/swaziland-challenge-to-the-common-law-marital-power-and-marriage-act/feed/0Zambia: Challenging the Mental Disorders Act of 1949https://southernafricalitigationcentre.org/2017/08/29/zambia-challenging-the-mental-disorders-act-of-1949/
https://southernafricalitigationcentre.org/2017/08/29/zambia-challenging-the-mental-disorders-act-of-1949/#respondTue, 29 Aug 2017 07:28:57 +0000http://salc.codefaktory.com/?p=1480SALC is supporting a petition by three persons with psychosocial disabilities and the Mental Health Users Network of Zambia (MHUNZA) to repeal the Mental Disorders Act of 1949 in Mwewa and Others v the Attorney General and Others. The Petitioners argue that the Act unconstitutionally infringes on the rights to dignity, liberty and to freedom from discrimination of persons with mental disabilities and denies persons with mental disabilities the protection of the legal capacity as required by the 2012 Persons with Disabilities Act. This is due, amongst others, to the following features of the Mental Disorders Act:

it’s use of discriminatory and derogatory language to describe and categorise persons with mental disabilities;

its sanction of detention of persons with disabilities on grounds of their disability, including in criminal detention facilities;

it’s permissions of psychiatric treatment without informed consent;

it’s denial of legal capacity to persons with mental disabilities without equal and effective protection of the law; and

the creation of a two-tier healthcare system depriving persons with mental disabilities with access to mental healthcare services at primary healthcare level and failing to provide adequate and appropriate healthcare and rehabilitation.

The petitioners pray for:

a declaration that the Mental Disorders Act is unconstitutional and incompatible with the Persons with Disabilities Act and therefor invalid;

a declaration that persons with mental disabilities enjoy the same right to informed consent to treatment and admission to healthcare facilities as all other persons;

a declaration that the detention of persons with mental disabilities on the grounds of their disability is unlawful; and

an order directing the Zambia Agency for Persons with Disabilities to monitor the enforcement of the judgment and report to the Court on its enforcement.

The Petitioners are represented by Ms Chipo Nkhata and Ms Felicity Kalunga of Mushota and Associates.

Disability Rights Watch has been admitted as amicus curiae (friend of the court). Disability Rights Watch is represented by Mr Katindo Mwale and Mr Brian Mwanza of the Legal Resources Foundation.

]]>https://southernafricalitigationcentre.org/2017/08/29/zambia-challenging-the-mental-disorders-act-of-1949/feed/0SALC Research Report: Prosecuting sexual violence against women and girls with disabilities in Malawihttps://southernafricalitigationcentre.org/2017/07/31/salc-research-report-prosecuting-sexual-violence-against-women-and-girls-with-disabilities-in-malawi/
https://southernafricalitigationcentre.org/2017/07/31/salc-research-report-prosecuting-sexual-violence-against-women-and-girls-with-disabilities-in-malawi/#respondMon, 31 Jul 2017 09:19:18 +0000http://salc.codefaktory.com/?p=928This report was prompted by Malawian civil society organisations’ perception that there is a lack of will on the part of police and prosecution to investigate and prosecute cases related to sexual violence committed against women and girls living with disabilities. The researchers interviewed civil society organisations, police and prosecutors to form a preliminary analysis of the attrition of sexual offence cases in the criminal justice system. The report makes various recommendations to improve the criminal justice system’s response to sexual violence and to increase access to justice for women and girls with disabilities.

]]>https://southernafricalitigationcentre.org/2017/07/31/salc-research-report-prosecuting-sexual-violence-against-women-and-girls-with-disabilities-in-malawi/feed/0SALC Research Report: Towards a human rights-based approach to learner pregnancy management in Malawihttps://southernafricalitigationcentre.org/2017/07/31/salc-research-report-towards-a-human-rights-based-approach-to-learner-pregnancy-management-in-malawi/
https://southernafricalitigationcentre.org/2017/07/31/salc-research-report-towards-a-human-rights-based-approach-to-learner-pregnancy-management-in-malawi/#respondMon, 31 Jul 2017 08:51:29 +0000http://salc.codefaktory.com/?p=1164The Malawi government’s Revised Readmission Procedures to deal with learner pregnancy was launched in 2006. Ten years later, SALC and the Malawi Human Rights Commission (MHRC) conducted research into the manner in which the policy is applied in practice. This research report critically assesses the current policy provisions and their enforcement. The report highlights various factors that ought to be considered in the revision of the policy and its application to ensure that it does not violate the human rights of learners.

]]>https://southernafricalitigationcentre.org/2017/07/31/salc-research-report-towards-a-human-rights-based-approach-to-learner-pregnancy-management-in-malawi/feed/0Zimbabwe: Challenging unlawful arrest of transgender womanhttps://southernafricalitigationcentre.org/2017/07/28/zimbabwe-challenging-unlawful-arrest-of-transgender-woman/
https://southernafricalitigationcentre.org/2017/07/28/zimbabwe-challenging-unlawful-arrest-of-transgender-woman/#respondFri, 28 Jul 2017 08:23:24 +0000http://salc.codefaktory.com/?p=1257On 16 January 2014 a transgender activist was arrested in Bulawayo after entering a female toilet. At the police station she was forced to strip and examined by medical doctors to verify her gender. After spending two nights in a holding cell, she was charged with criminal nuisance. The criminal charge was later withdrawn. The civil trial on unlawful arrest and malicious prosecution took place from 25 to 27 July 2017. SALC and the Sexual Rights Centre is providing support in this case.
]]>https://southernafricalitigationcentre.org/2017/07/28/zimbabwe-challenging-unlawful-arrest-of-transgender-woman/feed/0SALC calls for #equalhealthforallhttps://southernafricalitigationcentre.org/2017/07/25/salc-calls-for-equalhealthforall/
https://southernafricalitigationcentre.org/2017/07/25/salc-calls-for-equalhealthforall/#respondTue, 25 Jul 2017 10:19:58 +0000http://salc.codefaktory.com/?p=4691 March is internationally known asZero Discrimination Day.

Discrimination undermines human dignity and is a violation of human rights. As stated by theJoint United Nations Programme on HIV and AIDS (UNAIDS), the effects of discrimination aren’t isolated to the suffering of an individual person or group experiencing a particular incident: Discrimination undermines social cohesion; it prevents society from benefiting from a richer and deeper pool of talent; and it stigmatises people living with and most at risk of HIV, while undermining HIV treatment and prevention efforts.

This year on Zero Discrimination Day, UNAIDS is focussing on the importance of eliminating discrimination in healthcare settings.Researchconducted by the Southern Africa Litigation Centre (SALC) in 2016 in Botswana, Malawi and Zambia, illustrates discrimination experienced by women living with HIV, by people with disabilities, by sex workers, and by lesbian, gay, bisexual and transgender (LGBT) persons when accessing healthcare.

Persons with disabilitiesstruggle to access health information and to access HIV testing and sexual and reproductive healthcare services confidentially. When the barriers to access are overcome, people with disabilities describe facing verbal and physical abuse by healthcare workers particularly when accessing sexual and reproductive healthcare services.

Women living with HIVin southern Africa continue to face stigmatising behaviour and practices in healthcare settings, including beingsterilisedwithout their informed consentand being prosecuted and imprisoned forbreastfeeding. In addition, women’s vulnerability to HIV is exacerbated by social andeconomicconditions and cultural practices that compromise their abilities to negotiate safe sexual practices, to access healthcare services and to enjoy the social determinants of health. SALC has supported litigation inLesotho,Swaziland,Botswana,Malawiand Zambia that illustrates how legal regimes discriminate against women in the ownership, inheritance and enjoyment of property rights.

Criminal sanctions against same sex sexual acts continue to be applied in a number of southern African countries to denyLGBT personsthe freedom to associate and to access public services. LGBT persons fear being reported to police by healthcare workers and experience both direct and indirect discrimination in healthcare settings that inhibits their ability to access health and HIV treatment and prevention services according to their needs. This is despite that laws, policies and ethical frameworks affirm the right to equality and freedom from discrimination and thatcourtsin the region have affirmed that LGBT persons are not criminalised as persons, that they retain their human rights including freedom from discrimination.

Transgender personsin southern Africa experience discrimination and harassment in their daily lives – at work, at home, while they are walking on the street, or when they use public facilities such as banks, restaurants, hospitals, airports, and in dealings with thepolice– simply because they do not conform to gender identity norms. A booklet published by SALC on“Laws and policies affecting transgender persons in southern Africa”illustrates how discriminatory practices are entrenched in legal frameworks despite the constitutional and human rights guarantees of equality and dignity for transgender persons.

Sex workersare vulnerable to discrimination and violence in all spheres of their lives.Researchconducted by SALC illustrated how sex workers in Zambia experience violence, harassment and abuse by police officials, which practices are further illustrated in litigation inZimbabwe. Women assumed to be sex workers in Malawi have been subjected toforced HIV testingand public disclosure of their HIV status. SALC’sresearchin Botswana, Malawi and Zambia has further shown how this abuse is continued in healthcare settings where sex workers are inhibited from accessing post-exposure prophylaxis to prevent HIV transmission, have been denied treatment for sexually transmitted infections, and are sexually coerced and raped by healthcare workers.

On this Zero Discrimination Day, we call on states in southern Africa to confront the lived experiences of discrimination faced by people who are disproportionately affected by HIV and by vulnerable groups including women, adolescents, men who have sex with men, LGBT persons, sex workers,prisoners, people who use drugs, migrants, and people with disabilities.

States must eliminate legal and policy barriers to the enjoyment of equality for these persons; confront cultural, social and economic practices that heighten vulnerability to discrimination; and ensure that justice is accessible when discrimination and human rights violations occur.

]]>https://southernafricalitigationcentre.org/2017/07/25/salc-calls-for-equalhealthforall/feed/0SALC Policy brief: Access to justice for healthcare violationshttps://southernafricalitigationcentre.org/2017/07/24/salc-policy-brief-access-to-justice-for-healthcare-violations/
https://southernafricalitigationcentre.org/2017/07/24/salc-policy-brief-access-to-justice-for-healthcare-violations/#respondMon, 24 Jul 2017 09:52:46 +0000http://salc.codefaktory.com/?p=1183In 2016 SALC launched a research report on the extent to which key populations are subjected to discrimination in the healthcare system and their ability to access redress from complaints mechanisms. The research focused on Botswana, Malawi and Zambia. Subsequently, SALC convened meetings with civil society organisations and complaints bodies in Botswana, Malawi and Zambia, with the purpose of looking at best practices in dealing with complaints by key populations. This resulted in a background document and policy brief which provides guidance for complaints bodies to ensure that their complaints processes are more accessible and that they meet the needs of key populations. These documents complement a guide for civil society organisations on utilising complaints mechanisms to address discrimination in healthcare settings.

]]>https://southernafricalitigationcentre.org/2017/07/24/salc-policy-brief-access-to-justice-for-healthcare-violations/feed/0South Africa/Sudan: Amicus curiae in ICC cooperation hearing on South Africa’s failure to arrest Sudanese President Al Bashirhttps://southernafricalitigationcentre.org/2017/07/06/south-africasudan-amicus-curiae-in-icc-cooperation-hearing-on-south-africas-failure-to-arrest-sudanese-president-al-bashir/
https://southernafricalitigationcentre.org/2017/07/06/south-africasudan-amicus-curiae-in-icc-cooperation-hearing-on-south-africas-failure-to-arrest-sudanese-president-al-bashir/#respondThu, 06 Jul 2017 08:59:47 +0000http://salc.codefaktory.com/?p=841The Southern Africa Litigation Centre (SALC) appeared before the ICC on 7 April to argue that the chamber should make a finding of non-compliance against South Africa for its failure to arrest President Omar Al-Bashir when he attended an African Union (AU) Summit in South Africa in June 2015. In December 2016 the ICC had made a decision to convene a public hearing under Article 87(7) of the Rome Statute to discuss issues relevant to its determination of whether to make a finding of non-compliance by South Africa. SALC was admitted to make amicus curiae submissions before the chamber despite strong opposition by the South African government. The SALC submissions sought to demonstrate that South Africa had clear domestic and international legal obligations to arrest and surrender President Al-Bashir to the ICC. The Pre-Trial Chamber of the ICC ruled that South Africa had had failed to comply with its international law obligations as stipulated in the provisions of the Rome Statute. The PTC did not however refer South Africa to either the Assembly of State Parties to the Rome Statute, or to the UNSC as required by Article 87(7) of the Statute.

SALC was assisted by the following advocates: Maximillian du Plessis, Isabell goodman and Lerato Zikalala.

]]>https://southernafricalitigationcentre.org/2017/07/06/south-africasudan-amicus-curiae-in-icc-cooperation-hearing-on-south-africas-failure-to-arrest-sudanese-president-al-bashir/feed/0Malawi: Detention of Learners for Pregnancyhttps://southernafricalitigationcentre.org/2017/05/29/malawi-detention-of-learners-for-pregnancy/
https://southernafricalitigationcentre.org/2017/05/29/malawi-detention-of-learners-for-pregnancy/#respondMon, 29 May 2017 07:31:33 +0000http://salc.codefaktory.com/?p=1487SALC is working with Youth Watch Society (YOWSO) in Malawi on a case seeking the review of a Magistrates Court decision to fine parents of students who were pregnant and those responsible for the pregnancies at a school in Malawi. The case also challenges the unlawful detention of the students in police cells until such fines were paid. The case was filed in November 2016 and was initially heard on 27 April 2017.

Victor Gondwe of John Tennyson & Associates in Mzuzu, Malawi is representing the Applicants.

]]>https://southernafricalitigationcentre.org/2017/05/29/malawi-detention-of-learners-for-pregnancy/feed/0Zambia: Challenging Forced Eviction of Communities Living on Customary Landhttps://southernafricalitigationcentre.org/2017/05/29/zambia-challenging-forced-eviction-of-communities-living-on-customary-land/
https://southernafricalitigationcentre.org/2017/05/29/zambia-challenging-forced-eviction-of-communities-living-on-customary-land/#respondMon, 29 May 2017 06:47:54 +0000http://salc.codefaktory.com/?p=1449SALC is working with the Zambia Land Alliance to challenge the newly created Chikankata District Council’s taking over of individual farms and the grazing land of a community of 4429 people without following the legal and constitutional procedures. No compensation, whether in the form of money or alternative land, was provided to affected community members. Upon taking over of the land, the Council cleared the communal grazing land and started constructing administrative offices, staff houses, and a police station. Sometime in 2013, the Council started subdividing the farms and the remaining portion of the communal grazing land into small plots and offered them for sale to the public. Some members of the public who purchased the plots have since started clearing the land and constructing houses. The Council alleges that the community will not be affected as they will be integrated into the township. However, this is clear deception because it is not possible for the community members, who are farmers with hundreds of cattle, goats and sheep to be integrated into the township. Entire grazing lands have been converted into commercial and residential plots. Once the sale transactions and constructions are completed, the entire community will be evicted from their land and their houses will be demolished. Consequently, the affected community will become landless and homeless, without any means or livelihood.

On 14 November 2013, members of the affected community commenced proceedings in the High Court challenging the Council’s action. However, their application for an interim injunction has not been granted or given a date by the Court. They now hopelessly watch earth moving machines clear away their land and construction advancing to completion in their back yard.